The grounds for contested divorce in India are the specific, legally recognised reasons on which one spouse can ask a court to end a marriage without the other's agreement. For Hindus they are listed in Section 13(1) of the Hindu Marriage Act, 1955: adultery, cruelty, desertion for two years or more, conversion to another religion, mental disorder, venereal disease in a communicable form, renunciation of the world, and not having been heard of as alive for seven years. Section 13(2) adds four further grounds available only to the wife. A contested divorce is one where the spouses do not agree to part, so the petitioner must plead and prove a ground before a family court.
Part of the family and divorce law practice at S Jain & Attorneys, Bangalore.
This guide explains each ground in plain language, the evidence usually expected, the two statutory gates that trip petitions up before the grounds are even reached, how the process differs from mutual-consent divorce, which Act applies if you did not marry under the Hindu Marriage Act, and the questions families most often ask. It is general information, not legal advice, because every set of facts is different.
What is a contested divorce, and how is it different from mutual divorce?
In a mutual-consent divorce under Section 13B of the Hindu Marriage Act, both spouses agree to separate and file jointly, on the footing that they have been living separately for a year or more and cannot live together. The court mainly satisfies itself that consent is free and that alimony, custody and property have been settled. Nothing has to be proved against anyone. The second motion is made not earlier than six months and not later than eighteen months after the petition, though in Amardeep Singh v. Harveen Kaur (Supreme Court, 12 September 2017) the Court held that the six-month period in Section 13B(2) is directory and not mandatory, so a court may waive it where there is no possibility of the parties resuming cohabitation.
In a contested divorce, one spouse files alone and must establish a ground from Section 13(1). The other spouse can defend, and can also make a counter-claim under Section 23A on the petitioner's adultery, cruelty or desertion. Because the facts are disputed, contested matters run through pleadings, framing of issues, evidence, cross-examination and arguments, and they take far longer.
| Feature | Mutual-consent divorce (s. 13B) | Contested divorce (s. 13(1)) |
|---|---|---|
| Who files | Both spouses jointly | One spouse against the other |
| Basis | Mutual agreement to separate after a year apart | A proved statutory ground |
| Need to prove fault | No | Yes, usually |
| Typical duration | Roughly 6 to 18 months | Often 2 to 5 years or more |
| Waiting period | 6 months between motions, waivable per Amardeep Singh | Not applicable |
| Counter-claim possible | No, the petition is joint | Yes, under s. 23A |
| Likely cost | Lower | Higher, because the litigation is longer |
Timelines vary widely by court, backlog and complexity. Treat the table as indicative only.
Two gates before you reach the grounds
Two provisions decide a surprising number of divorce petitions before anyone argues about cruelty or desertion.
Section 14: no petition within one year of marriage. A court cannot entertain a divorce petition unless one year has elapsed since the date of the marriage. The court may allow an earlier petition on application, but only where the case is one of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent. If leave was obtained by misrepresentation or concealment, the court may pass a decree that does not take effect until a year from the marriage, or dismiss the petition altogether.
Section 23: the bars to relief. Even where a ground is made out, the court must be satisfied that the petitioner is not taking advantage of his or her own wrong or disability; that in an adultery case the petitioner has not been accessory to, connived at, or condoned the act, and in a cruelty case has not condoned the cruelty; that the petition is not presented in collusion with the respondent; that there has been no unnecessary or improper delay in instituting the proceeding; and that there is no other legal ground for refusing relief. Section 23(2) also requires the court, in the first instance, to make an endeavour to bring about a reconciliation, unless the ground is one of the specified exceptions.
These are the threshold requirements a court checks before it looks at any ground at all.
Section 14, the one-year bar
No divorce petition can be entertained until one year has elapsed since the marriage, unless the court gives leave for exceptional hardship or exceptional depravity.
Leave obtained wrongly
If leave was obtained by misrepresentation or concealment, the court may pass a decree that does not take effect until a year from the marriage, or dismiss the petition.
Section 23, bars to relief
The petitioner must not be taking advantage of his or her own wrong, must not have connived at or condoned the conduct, and must not have colluded or delayed.
Reconciliation first
Section 23(2) requires the court, in the first instance, to make an endeavour to bring about a reconciliation, unless the ground is one of the specified exceptions.
Deadline warning. Section 14 means the clock starts at the date of marriage, not at the date the trouble started. Desertion under Section 13(1)(ib) needs two continuous years immediately before the petition is presented, so a petition filed at twenty-two months of separation fails on its own pleading and has to be filed again. Count the periods on a calendar before drafting, not after.
The main grounds under Section 13(1)
Section 13(1) lists the fault-based grounds available to either spouse. Marriages under the Special Marriage Act, 1954 and other personal laws have their own, broadly similar lists, so confirm first which Act governs your marriage.
Cruelty, Section 13(1)(ia)
The ground is that the respondent has, after the solemnisation of the marriage, treated the petitioner with cruelty. The Act deliberately does not define it. Courts have read it to cover physical cruelty and mental cruelty alike, mental cruelty being sustained conduct that makes it unreasonable to expect the spouses to live together. In Samar Ghosh v. Jaya Ghosh, (2007) 4 SCC 511, the Supreme Court set out an illustrative and expressly non-exhaustive list of instances, including a sustained course of abusive and humiliating treatment, studied neglect or a total departure from the normal standard of conjugal kindness, unilateral refusal of sexual relations for a considerable period without physical incapacity or valid reason, a unilateral decision after marriage not to have a child, and a long period of continuous separation after which the marriage survives only as a legal tie.
The same judgment sets the floor. Mere coldness or lack of affection, jealousy, possessiveness, trivial irritations, quarrels and the ordinary wear and tear of married life do not amount to cruelty, and a few isolated instances over many years will not do. The conduct must be persistent. In practice, medical records, messages, call logs, complaint records and witnesses to specific incidents carry the case.
Desertion, Section 13(1)(ib)
Desertion requires that the respondent has deserted the petitioner for a continuous period of not less than two years immediately preceding the presentation of the petition. The Explanation to Section 13(1) defines desertion as desertion of the petitioner by the other party without reasonable cause and without the consent or against the wish of that party, and it includes wilful neglect.
So there are four elements, and all four have to be pleaded: separation in fact, for two continuous years immediately before filing, without reasonable cause, and without the other spouse's consent. Courts also look for the intention to end cohabitation permanently. Living apart for work, study, a posting or the care of a parent is not desertion, and if the couple agreed to the arrangement there is no desertion at all.
Adultery, Section 13(1)(i)
The ground is that the respondent has, after the solemnisation of the marriage, had voluntary sexual intercourse with any person other than his or her spouse. Note the distinction that confuses people: the criminal offence of adultery, the former Section 497 of the Indian Penal Code, was struck down by the Supreme Court in Joseph Shine v. Union of India (27 September 2018). That decision decriminalised adultery. It did not touch Section 13(1)(i) of the Hindu Marriage Act, so adultery remains fully available as a ground for divorce. The practical difficulty is proof: direct evidence is rare, and courts accept a case built on circumstances that lead to no other reasonable inference. How that evidence is gathered matters as much as what it shows, because records obtained by breaking into a phone or by impersonation create problems of their own. Section 23(1)(b) also bars relief where the petitioner was accessory to, connived at, or condoned the adultery.
Conversion, Section 13(1)(ii)
The ground is that the respondent has ceased to be a Hindu by conversion to another religion. What must be proved is an actual conversion, not a change of practice, belief or diet. Evidence of a formal ceremony, a certificate, or an official record of the new faith is what courts look for.
Mental disorder, Section 13(1)(iii)
The ground is that the respondent has been incurably of unsound mind, or has been suffering continuously or intermittently from a mental disorder of such a kind and to such an extent that the petitioner cannot reasonably be expected to live with the respondent. The Explanation defines mental disorder to include mental illness, arrested or incomplete development of mind, psychopathic disorder or any other disorder or disability of mind, and expressly includes schizophrenia. This ground requires careful medical evidence and is read narrowly. An ordinary illness, a treatable condition, or temporary stress does not qualify, and the statutory test is not simply that the respondent has a diagnosis but that the degree of the disorder makes cohabitation unreasonable.
The remaining grounds under Section 13(1)
Section 13(1) also provides for venereal disease in a communicable form under clause (v), renunciation of the world by entering a religious order under clause (vi), and presumption of death, where the respondent has not been heard of as being alive for seven years or more by those who would naturally have heard of it, under clause (vii).
One item has been removed, and older articles still get this wrong. Leprosy is no longer a ground for divorce. Clause (iv) of Section 13(1), which had made virulent and incurable leprosy a ground, was omitted by the Personal Laws (Amendment) Act, 2019 (Act 6 of 2019) with effect from 1 March 2019. If a petition or a template you are working from still pleads leprosy, it is pleading a clause that does not exist.
Grounds available only to the wife, Section 13(2)
The wife has four additional grounds:
- that in a marriage solemnised before the Act came into force, the husband had married again before that commencement, or another wife married before it was alive at the time of the petitioner's marriage, provided that other wife is alive when the petition is presented;
- that the husband has, since the marriage, been guilty of rape, sodomy or bestiality;
- that in a suit under Section 18 of the Hindu Adoptions and Maintenance Act, 1956, or in maintenance proceedings under the criminal procedure code, a decree or order awarding her maintenance has been passed although she was living apart, and cohabitation has not been resumed for one year or more since; and
- that her marriage, consummated or not, was solemnised before she turned fifteen, and she repudiated it after fifteen but before turning eighteen.
Two routes people miss
Section 13(1A) gives either spouse a ground that does not depend on proving fault at all. If there has been no resumption of cohabitation for one year or more after a decree of judicial separation, or no restitution of conjugal rights for one year or more after a decree for restitution under Section 9, either party may petition for divorce. A spouse who obtained a restitution decree that the other ignored has a route to divorce that requires proof only of the decree and of non-compliance.
Section 13A works the other way. In a divorce petition on most grounds, the court may, if it considers it just having regard to the circumstances, pass a decree for judicial separation instead of divorce. Judicial separation under Section 10 relieves the petitioner of the obligation to cohabit without dissolving the marriage. It is a genuine option where a client wants separation, maintenance and protection but not, yet, an end to the marriage.
| Ground | Section (HMA) | Key thing to prove | Usual evidence |
|---|---|---|---|
| Adultery | 13(1)(i) | Voluntary sexual intercourse outside the marriage after solemnisation | Circumstantial evidence, records lawfully summoned, admissions |
| Cruelty | 13(1)(ia) | A persistent pattern of physical or mental cruelty | Medical records, messages, complaints, witnesses to incidents |
| Desertion | 13(1)(ib) | Two continuous years, without reasonable cause, without consent, with intention to end cohabitation | Dates, correspondence, proof of the other side's refusal to return |
| Conversion | 13(1)(ii) | Respondent ceased to be a Hindu by conversion | Conversion certificate, ceremony evidence, official records |
| Mental disorder | 13(1)(iii) | Incurable unsoundness, or a disorder of a kind and degree making cohabitation unreasonable | Expert medical evidence, treatment history |
| Venereal disease | 13(1)(v) | Communicable form | Medical evidence |
| Renunciation | 13(1)(vi) | Entry into a religious order | Records of the order, witnesses |
| Presumption of death | 13(1)(vii) | Not heard of as alive for 7 years or more | Evidence of enquiry from those who would naturally have heard |
| No cohabitation after decree | 13(1A) | Decree of judicial separation or restitution, plus one year of non-compliance | Certified copy of the decree, proof of non-resumption |
| Wife-only grounds | 13(2) | Bigamy pre-Act, rape or sodomy or bestiality, non-cohabitation after maintenance order, repudiation of a child marriage | Depends on the clause |
Key takeaway. Plead one or two grounds you can actually prove, not every ground in the section. Family courts read an omnibus petition alleging cruelty, desertion, adultery and mental disorder together as a sign that none of them is properly evidenced, and a ground you plead and fail to prove can be used against you later on maintenance and custody.
Which law governs your marriage
Section 13 applies only to marriages governed by the Hindu Marriage Act. Confirm the correct Act before relying on any of the above.
| If the marriage is | Governing Act | Main divorce provision |
|---|---|---|
| Between Hindus, Buddhists, Jains or Sikhs | Hindu Marriage Act, 1955 | Section 13, with Section 13B for mutual consent |
| Solemnised or registered under the civil law, including many interfaith marriages | Special Marriage Act, 1954 | Section 27, with Section 28 for mutual consent |
| A Muslim wife seeking dissolution | Dissolution of Muslim Marriages Act, 1939 | Section 2, which lists nine grounds including absence for four years, failure to maintain for two years and failure to perform marital obligations for three years |
| Between Christians | Divorce Act, 1869 | Section 10, with Section 10A for mutual consent |
| Between Parsis | Parsi Marriage and Divorce Act, 1936 | Section 32 |
A note on the new criminal codes
The Hindu Marriage Act is civil law and was not replaced by the 2023 reforms. Divorce facts, however, overlap constantly with criminal proceedings, and the numbering has changed. From 1 July 2024 the Indian Penal Code, 1860 was replaced by the Bharatiya Nyaya Sanhita, 2023, and the Code of Criminal Procedure, 1973 by the Bharatiya Nagarik Suraksha Sanhita, 2023.
- Cruelty by a husband or his relatives, formerly Section 498A of the Indian Penal Code, is now Section 85 of the Bharatiya Nyaya Sanhita, punishable with imprisonment up to three years and fine, with cruelty defined for that purpose in Section 86.
- Maintenance for wives, children and parents, formerly Section 125 of the Code of Criminal Procedure, is now Section 144 of the Bharatiya Nagarik Suraksha Sanhita.
The civil grounds under Section 13(1) are unaffected. Where a matter began before 1 July 2024 it will usually continue under the old code, so both sets of numbers stay in circulation for years. For the criminal-overlap side, see our note on Section 498A explained.
How the contested divorce process works
- Confirm jurisdiction and the one-year bar. Under Section 19 the petition goes to the district court where the marriage was solemnised, where the respondent resides, where the parties last resided together, or, where the wife is the petitioner, where she is residing on the date of presentation. Check the Section 14 one-year rule at the same time.
- Draft and file the petition, pleading the specific ground, the facts constituting it with dates, and the reliefs sought.
- Notice to the respondent, who files a written statement and may make a counter-claim under Section 23A.
- Interim applications. Maintenance pendente lite and litigation expenses under Section 24, custody and visitation under Section 26, and injunctions where property or the children are at risk. These are decided alongside and often matter more day to day than the main case.
- Reconciliation and mediation. Section 23(2) obliges the court to attempt reconciliation in the first instance for most grounds, and family courts routinely refer parties to mediation.
- Framing of issues by the court, which fixes what each side actually has to prove.
- Evidence, by affidavit in examination-in-chief followed by cross-examination of the parties and their witnesses.
- Final arguments, judgment and decree, with permanent alimony under Section 25 and custody under Section 26 dealt with in the decree.
- Appeal, which lies to the High Court, and which is what makes the timelines long.
A decree can be appealed, which extends timelines further. This is why contested divorce is significantly slower than mutual-consent divorce. If you are weighing your options, our family and divorce law practice can help you understand which route fits your situation.
Common mistake. Treating the divorce petition as the whole case. The money and the children are decided in the applications running alongside it, and those are usually settled long before the decree. Clients who put all their energy into the main petition and none into the Section 24 and Section 26 applications end up winning a decree years later on terms they could have negotiated at the start.
Where these cases are actually won
In practice, contested divorces turn on three unglamorous things. The first is dates. Section 14 and the two-year desertion period are arithmetic, and a petition that gets the arithmetic wrong is dismissed without anyone reaching the merits. The second is documents that already existed before the dispute: the medical record made at the time, the message sent that week, the complaint filed that month. Evidence created after the fight started reads as manufactured, and cross-examination will treat it that way. The third is restraint in pleading. I regularly see petitions that allege everything the section contains, on the theory that something will stick. What actually happens is that the respondent's counsel picks the weakest allegation, demolishes it, and invites the court to view the rest through that lens. Pick the ground you can prove, prove it properly, and let the alternative case live in the counter-claim if it belongs anywhere. Where a settlement is realistically available, converting to a mutual-consent petition under Section 13B is very often the better outcome for both sides, and the courts encourage it at every stage.
Frequently Asked Questions
What are the main grounds for contested divorce in India?
Under Section 13(1) of the Hindu Marriage Act, 1955, the grounds are adultery, cruelty, desertion for two years or more, conversion to another religion, mental disorder, venereal disease in a communicable form, renunciation of the world, and presumption of death after seven years. The wife has four extra grounds under Section 13(2), and Section 13(1A) allows divorce after a year of non-compliance with a decree of judicial separation or restitution.
Is adultery still a ground for divorce after it was decriminalised?
Yes. The Supreme Court in Joseph Shine v. Union of India (27 September 2018) struck down the criminal offence of adultery under the former Section 497 of the Indian Penal Code, but adultery remains a valid ground for divorce under Section 13(1)(i) of the Hindu Marriage Act.
Is leprosy still a ground for divorce?
No. Clause (iv) of Section 13(1), which made virulent and incurable leprosy a ground, was omitted by the Personal Laws (Amendment) Act, 2019 with effect from 1 March 2019. Any material still listing it is out of date.
How long must desertion last before I can file?
At least two continuous years immediately preceding the presentation of the petition, under Section 13(1)(ib). The separation must also be without reasonable cause and without the petitioner's consent, and an intention to permanently abandon the marriage must be shown.
What counts as cruelty in a divorce case?
Both physical and mental cruelty. Courts assess a sustained pattern, such as violence, persistent humiliation, studied neglect, or unjustified denial of the marital relationship, that makes it unreasonable to expect the spouses to continue living together. Trivial quarrels and the normal wear and tear of married life do not qualify.
Can I file for divorce within the first year of marriage?
Only with the court's leave. Section 14 bars a petition within one year of the marriage unless the court permits an earlier filing on the ground of exceptional hardship to the petitioner or exceptional depravity on the part of the respondent.
How long does a contested divorce take in India?
There is no fixed period. Contested divorces commonly take around two to five years or more, depending on the court's backlog, the complexity of the disputes, and whether the decree is appealed. Mutual-consent divorces are usually faster.
Can a contested divorce become a mutual-consent divorce later?
Yes. Spouses can settle during litigation and convert to a mutual-consent petition under Section 13B, or settle through mediation, which courts actively encourage. The six-month waiting period between motions can be waived in appropriate cases following Amardeep Singh v. Harveen Kaur.
Which law applies if we did not marry under the Hindu Marriage Act?
Different personal laws and the Special Marriage Act, 1954 have their own grounds, broadly similar but not identical: Section 27 of the Special Marriage Act, Section 2 of the Dissolution of Muslim Marriages Act, 1939, Section 10 of the Divorce Act, 1869 for Christians, and Section 32 of the Parsi Marriage and Divorce Act, 1936. Confirm which Act governed your marriage before relying on Section 13.
This article is for general informational purposes only and does not constitute legal advice. Laws change and every situation is different; please consult a qualified advocate about your specific matter.
